I almost stopped writing this column mid-stream because the topic is so difficult and the resolution so unclear—and probably controversial. I decided to write it anyway in hopes that it will generate debate within the bar about the important topic of lawyer duties to report child abuse.

This is a good occasion to recall the disclaimer I made when my first column ran in July-August 2005: “I’m calling the column ‘Ethics Curbstone’ to emphasize that the content is not intended as specific legal advice. It’s in the nature of a curbstone opinion—you get what you pay for.” Until authoritative guidance is available, lawyers will have to work through these issues in good faith for themselves.

The recent publicity surrounding claims of child sexual abuse at Penn State and the attention it focused on child abuse reporting laws made me wonder about the obligation of lawyers to report child abuse when they become aware of it through a client representation. One hopes never to be the lawyer who looks back on a child abuse situation, having to admit that she knew about it and did nothing to try and prevent it.

Statutory Child Abuse Reporting

Indiana’s child abuse reporting statute is quite broad: “In addition to any other duty to report arising under this article, an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.” Ind. Code 31-33-5-1. A victim of child abuse or neglect is a child who is described elsewhere in the Juvenile Code as a child in need of services. Ind. Code 31-9-2-133, referring to Ind. Code 31-34-1-1 through 31-34-1-5, 31-34-1-10 and 31-34-1-11. Those definitions are quite lengthy, so I will not discuss them here. They should be consulted by any lawyer facing a potential situation of child abuse reporting. “Reason to believe” means “evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected.” Ind. Code 31-9-2-101.

When a report is required, it is to be made to either the Department of Child Services or local law enforcement. Ind. Code 31-33-5-4. The reporting obligation is personal to anyone who has “reason to believe.” In addition, individuals who work in institutional settings must also report to the person in charge of the institution, who then has his or her own independent duty to report. Ind. Code 31-33-5-2. A report must be “immediate” in the form of an oral report. Ind. Code. 31-33-5-4. There is a statewide child abuse reporting hot line for this purpose: (800) 800-5556.

Individuals who report suspected child abuse non-maliciously and in good faith are immune from civil or criminal liability for having made the report. Ind. Code 31-33-6-1. Good faith is presumed. Ind. Code 31-33-6-3. It is a Class B misdemeanor to fail to report child abuse when it is required. Ind. Code. 31-33-22-1.

Confidentiality and Privilege

Must a lawyer who finds out during a legal representation that the client or a third party has abused or neglected a child report it? This is a complicated question because, on the one hand, lawyers are “individuals” for mandatory child abuse reporting purposes, but, on the other hand, they are licensed professionals with confidentiality obligations under Rule of Professional Conduct 1.6, and whose clients enjoy privileged communications with their lawyers. Ind. Code 34-46-3-1(1). Lest we get too bound up in lawyer exceptionalism, we are not alone as professionals in having confidentiality obligations and privileged communications. Among others, physicians and clergy do, too. Ind. Code 34-46-3-1.

If it were a simple matter of the duty to report child abuse trumping confidentiality and privilege, the answer to our quandary might be simple: lawyers have to report clients’ confessions of child abuse—end of discussion. But it is more difficult than that.

Conflicting Public Policies

Lawyers work at the intersection of important public policies that stand in tension with each other. They are citizens and share with the rest of society a collective responsibility to protect vulnerable children from victimization by abusive adults. They are also officers of the court and fulfill a vital role in protecting citizens from the coercive power of the State. Is it possible to reconcile these responsibilities?

Back in 1986, I was a member of a subcommittee of the Indianapolis Bar Association Legal Ethics Committee that wrote an opinion generally addressing the subject of this column. Indianapolis Bar Association Ethics Op. 1986-1. We concluded then that a lawyer had no duty to report client confessions of past abusive behavior. Part of our reason for reaching that result was because the child abuse reporting statute then in effect expressly abrogated the physician-patient and inter-spousal privileges, but not the attorney-client privilege. It was not much of a leap to suggest that the legislature intended that the attorney-client privilege trumped the duty to report child abuse. On the other hand, our subcommittee could not reach agreement on whether a lawyer was required to report concerns about future child abuse in order to prevent it.

The child abuse reporting statute was amended and recodified in 1998. The chapter creating the duty to report no longer includes an express abrogation of certain evidentiary privileges, but elsewhere in the Juvenile Code, in the chapter dealing with admissibility of evidence in court proceedings, it provides that a large number of otherwise-privileged communications are “not a ground for excluding evidence in any judicial proceeding resulting from a report of a child who may be a victim of child abuse or neglect or relating to the subject matter of the report or failing to report as required by IC 31-33.” Ind. Code 31-32-11-1 (emphasis added). The attorney-client privilege is not among those listed. Consequently, just as was the case back in 1986, it still seems fair to conclude that the legislature believes the attorney-client privilege trumps the duty to report child abuse. More about reporting past child abuse in a bit.

Reporting Current or Future Abuse

Amendments to the confidentiality exceptions in the Rules of Professional Conduct have made the question of reporting current or threatened future abuse of a child, which the committee found such a vexing question in 1986, a relatively easy one—we will see that it must be reported. If a lawyer reasonably believes, even based on information received directly from a client, that a child to whom the client has access is a current victim of child abuse or will be abused, there are several exceptions to the duty of client confidentiality that allow the lawyer to make a report. The confidentiality exceptions in Rule of Professional Conduct 1.6(b) include:

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent a client from committing a crime…; (6) to comply with other law or a court order.

(Caveat: read the exception in Rule 1.6(b)(2) very carefully. In contrast to the corresponding ABA Model Rule, it is not limited to crimes that might cause substantial injury to financial interests or property of others or that involve use of the lawyer’s services. It applies to prevention of all client crimes. See, Lundberg, Ethics Curbstone: Trust Account Debit Cards and a Footnote on Client Confidentiality, Vol. 49, No. 6 Res Gestae 36 (2006).)

Comment [6] to Rule 1.6 expands on what is “reasonably certain death or substantial bodily harm”: “Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.” Most people would agree that child abuse usually constitutes substantial bodily harm. Accordingly, a lawyer may ethically disclose a client’s intent to engage in child abuse in order to prevent it. Also, virtually every act of child abuse is a crime and a lawyer may similarly report it to prevent it.

Even if the source of the information creating a reasonable belief that a child is the victim of child abuse is a client and even if the perpetrator of the suspected child abuse is a client, a lawyer is authorized by the client confidentiality exceptions, particularly Rule 1.6(b)(3), to report it. Moreover, under Rule 1.6(b)(2), lawyers are authorized to report otherwise confidential client information to prevent reasonably certain death or substantial bodily harm even if it is not the client who is the perpetrator. If a lawyer may report suspected child abuse in order to prevent it, it is no longer obligatorily confidential and the child abuse reporting statute intercedes to require that it be reported.

Reporting Past Abuse

Client disclosure of past abuse of a child is different. Surely, having been told by a client that he has abused a child, a lawyer has “reason to believe” that the child has been abused. Must it now be reported by the lawyer? As noted earlier, the seeming permissiveness of the confidentiality exception for complying with other law or a court order is illusory. If reporting is not prohibited, the child abuse reporting statute makes it mandatory. In the interest of full disclosure, this is, in fact, a point on which our 1986 ethics subcommittee could not agree. I happen to think it is self-evident.

But this sets up a real problem, doesn’t it? Taken to its limit, it would effectively preclude a person accused of child abuse from being represented by legal counsel—something that runs counter to the most fundamental values of our system of justice. And, to the extent it interferes with the Sixth Amendment right to effective assistance of counsel, is probably unconstitutional. See also Art. 1, §13 of the Indiana Constitution.

The purpose of the attorney-client privilege and the ethical duty of confidentiality is to incentivize candor between client and lawyer so clients will receive proper and fully informed legal advice. If a client accused of the crime of child abuse confesses to his lawyer, mandatory reporting would turn the client’s own lawyer into an informant against the client. Surely that result could not be tolerated.

To take an artificially neat example, when a client, who is no longer in a position to victimize a child, admits to his lawyer that he did so in the past, there are two reasons why the lawyer should not be required to turn in her own client. First, the child abuse reporting statute requires reporting if an individual reasonably believes a child “is” a victim of child abuse. Absent any current access to a child that would create a risk of abuse in the future, it could be argued that the child may have once been a victim of child abuse, but is not currently a victim. For that reason, there is no statutory duty to report. Second, as noted earlier, the attorney-client privilege appears not to have been abrogated by the legislature because it is not listed among the privileges that were abrogated. Moreover, the attorney-client privilege has its origins in the common law and likely has vitality apart from legislative action. The second rationale has more appeal for me, because the first argument tends to minimize the extent to which child abuse, even when it stops, continues to victimize a child.

The Messy Real World

I described this situation as “artificially neat” because the real world is more complicated. What of the client who admits to a pattern of past abuse, but still has access to the victim to engage in future acts of abuse—perhaps claiming that the abuse has stopped; perhaps not? Is that a case of privileged and confidential past abuse or a case of future endangerment of a child that ought to be prevented? In many cases, child abuse defines a pattern of behavior between an abusive adult and a vulnerable child or children that is highly predictive of future conduct. So long as a client who admits to having abused a child in the past still has access to the child, there is often good reason to believe the child continues to be and will in the future be a victim.

There is little Indiana case law to shed light on this problem—none dealing with the attorney-client privilege. In Daymude v. State, 540 N.E.2d 1263 (Ind. Ct. App. 1989), the privileged nature of communications from a patient to a mental health counselor was upheld when the patient admitted past child sexual abuse in court-ordered counseling sessions related to a child in need of services (CHINS) case. In reversing the trial court’s refusal to recognize the privileged nature of the communications, the Court of Appeals stated: “Once the abuse is discovered, however, the [child abuse reporting] statute should not be construed, nor can the legislature of have intended it to be construed, to permit total elimination of this important privilege. The central purpose of the child abuse reporting statute is the protection of children, not punishment of those who mistreat them.” Id. at 1267.

It seems to me that Daymude makes it clear that lawyers, who defend clients in criminal or CHINS cases or other cases, such as domestic relations matters, involving allegations of child abuse or neglect, are free to candidly communicate with their clients with no risk that the lawyer will be required to report to the authorities what the client tells her about his conduct with alleged victims. It is somewhat less clear what a lawyer’s confidentiality obligations or a client’s privilege rights are when the client tells the lawyer about additional, unidentified victims. Even here, it seems to me that the courts would hold that, so long as there is no future criminal conduct or substantial bodily injury to be prevented, the attorney-client privilege protects the lawyer from having to report strictly past events.

Privilege Versus Confidentiality

I have already covered the fact that the attorney-client privilege trumps the child abuse reporting statute. But the duty lawyers have to keep their client information confidential is much broader than the privilege. Unlike the evidentiary privilege that protects only what the client communicates to the lawyer, the ethical duty of confidentiality protects virtually everything the lawyer knows about the client’s matter regardless of the source of the information. See Lundberg, Listen, Do You Want to Know a Secret? Keeping Client Confidences, Vol. 54, No. 3 Res Gestae 21 (October 2010). If a lawyer learns from a source other than a client that a client has committed child abuse and reasonably believes that he will commit it in the future, that information will be confidential, but not privileged. Because that information is not privileged, the child abuse reporting statute and Rule 1.6(b)(6) will kick in to render the lawyer’s duty to report virtually identical to what it would be if there were no attorney-client relationship.

Predicting the Future from the Past

The relative ease of protecting client confidences changes when the client’s disclosure is not limited to past conduct. The hardest question of all will be for a lawyer to divine when a client’s disclosure of past abuse, combined with continued access to the victim, necessitates a report to prevent future abuse. If the lawyer has a reasonable degree of confidence that the client (or a third party, for that matter) will abuse a child in the future, not only is a lawyer permitted by the Rules of Professional Conduct to disclose otherwise-confidential information to prevent future abuse, the child abuse reporting statute makes the duty mandatory.

Revealing client confidences is never easy for lawyers. In most instances, even when we are ethically permitted to do so, we are equally permitted to choose not to. It is up to us and our consciences to deal with the fact that our client threatened to commit a crime, and we knew about it but did nothing to prevent it. Not so with child abuse reporting. Lawyers stand between Scylla and Charybdis. If they are required to report and do not, they violate their duties to society and even risk criminal culpability. If they are not required to report, but do, they violate their client confidentiality duties and risk disciplinary action.

I would like to thank Derelle Watson-Duvall of Kids’ Voice of Indiana for input in writing this column. Of course, the views expressed here are mine alone and not necessarily those of Ms. Watson-Duvall or Kids’ Voice.